MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Respondent, v. MINNESOTA POLLUTION CONTROL AGENCY, Petitioner, Appellant, Boise Cascade Corporation, Intervenor, Petitioner, Appellant.
No. C6-01-96.
Supreme Court of Minnesota.
May 23, 2002.
644 N.W.2d 457
RUSSELL A. ANDERSON, Justice (dissenting).
I join in the dissent of Justice Stringer.
LANCASTER, Justice (dissenting).
I join in the dissent of Justice Stringer.
MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Respondent,
v.
MINNESOTA POLLUTION CONTROL AGENCY, Petitioner, Appellant,
Boise Cascade Corporation, Intervenor, Petitioner, Appellant.
No. C6-01-96.
Supreme Court of Minnesota.
May 23, 2002.
Winthrop & Weinstine, P.A., Lloyd W. Grooms (# 188694), Eric F. Swanson (# 188128), St. Paul, MN, for Appellant Boise Cascade.
Faegre & Benson LLP, Brian B. O‘Neill (# 82521), Richard A. Duncan (# 192983), Kristin R. Eads (# 275414), Elizabeth H. Schmiesing (# 229258), Anne E. Mahle (# 312861), Minneapolis, MN, for Respondent MCEA.
Dunkley, Bennett, Christensen & Madigan, P.A., Michael D. Madigan (# 129586), David G. Parry (# 281980), Minneapolis, MN, for Amicus Trout Unlimited, et al.
David R. Oberstar (# 144162), Duluth, MN, for Amicus MN Timber.
OPINION
GILBERT, Justice.
Respondent Minnesota Center for Environmental Advocacy (MCEA)1 brought a declaratory judgment action in district court seeking an order requiring the preparation of an Environmental Impact Statement (EIS), pursuant to
Boise Cascade operates an integrated pulp and paper mill on the Rainy River in International Falls, Minnesota. The mill manufactures a variety of coated and uncoated fine paper products. Wood for the mill is supplied from Boise Cascade‘s timberlands in Minnesota, public and private timberlands, and residues from local sawmills. Boise Cascade supplies 72 percent of the wood for the mill and purchases the remainder on the outside market in the form of pulp. Currently, the mill consumes approximately 600,000 cords2 of wood per year.
Because the mill is not completely integrated and must purchase part of its pulp requirements, Boise Cascade has proposed an efficiency improvement project to make the mill less dependent on pulp purchased on the outside market. The improvements would increase the mill‘s maximum wood consumption by up to 100,000 cords per year, bringing the total consumption to approximately 700,000 cords per year. This wood is expected to be harvested from an area within a 150-mile radius of International Falls, but some may come from farther away.
The MPCA was required by law to complete an environmental assessment
The DNR noted that the proposed project represents a maximum 2.5 percent increase in statewide harvest levels. The timber procurement area consists of approximately 11,400,000 acres of timberland and the project will increase timber harvests by an estimated range of 2,500-6,000 acres in this base disbursed across the 150-mile wide procurement zone.
The DNR also assisted by contributing to the part of the EAW that addressed environmental impacts related to the increase in timber harvesting. The DNR relied in part upon the timber harvest and forest management guidelines promulgated by the Minnesota Forest Resources Council (MFRC) under the SFRA. In the DNR‘s analysis of the potential environmental impacts, it also relied upon the 1994 Generic Environmental Impact Statement for Timber Harvesting and Forest Management (Forestry GEIS).5 The Forestry GEIS was prepared at the request of the Minnesota Environmental Quality Board (EQB) to examine the effect that expanded timber harvesting might have on the environment. Here, the EQB determined that the Forestry GEIS remained adequate for use in the analysis of Boise Cascade‘s project.
The EAW was completed and distributed for public comment on February 19, 1999. A comment and response period followed, during which the MPCA and the DNR received comments from the MCEA and others regarding the need for an EIS and specifically responded to those comments. See
[C]5. The MPCA finds that the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority.
* * * *
[D]4. The MPCA finds that the environmental effects of the project can be anticipated and controlled as a result of the previous environmental review, previous environmental studies, and permitting processes undertaken by the MPCA and other public agencies or the project proposer, including other EISs.
* * * *
CONCLUSIONS
* * * *
2. Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigative measures have been incorporated into the project design and proposed permits. The project is expected to comply with all MPCA standards.
3. An Environmental Impact Statement is not required on the proposed Boise Cascade Efficiency Improvement Project.
The MCEA then initiated an action in district court against the MPCA for declaratory and injunctive relief, challenging the MPCA‘s decision not to require an EIS under
The parties brought cross-motions for summary judgment, and the district court granted summary judgment in favor of Boise Cascade and the MPCA and against the MCEA. The court noted the undisputed facts, including that the MPCA was the RGU for this project, and that the MPCA had enlisted the aid of the DNR‘s forestry expertise. The court then addressed each issue raised by the MCEA. First, the court ruled that the issues raised regarding the Forestry GEIS were essentially the same issues that the MCEA raised before the EQB when it originally challenged the adequacy of the Forestry GEIS before the EQB. Because the MCEA did not timely appeal the EQB‘s determination of adequacy, the court ruled that it was not required to address the issue. However, the court went on to find that the MPCA did use the Forestry GEIS properly because the MPCA did not use the Forestry GEIS as a substitute for environmental review of the project and because a comprehensive EAW was prepared in which the Forestry GEIS was used in accordance with state regulations.
Second, addressing the adequacy of mitigation issue raised by the MCEA, the court ruled that there was “substantial support in the record that the mitigation
the progress of implementing [the SFRA] and other ongoing activities of forest landowners and managers, which represents the State‘s primary policy tool for addressing the cumulative environmental effects of timber harvest, [was] sufficient to provide ongoing mitigation for any cumulative potential effects that are present consistent with the findings and recommendations of the [Forestry] GEIS.
The court ruled that this finding was not arbitrary and capricious.
The court concluded by ruling that substantial evidence in the record supported the MPCA‘s conclusions. Specifically, the court ruled that, because decisions of administrative agencies generally enjoy a presumption of correctness, the MCEA had not demonstrated that the MPCA‘s decision was unreasonable, arbitrary and capricious, or lacked a factual basis.
The MCEA appealed. The court of appeals concluded that while some mitigation strategies were being identified and implemented, the MPCA‘s determination that the potentially adverse environmental effects of the Boise Cascade project were subject to mitigation by ongoing public regulatory authority was not supported by substantial evidence. Specifically, the court concluded that “[t]he efficacy of the mitigation measures for the Boise project was questionable” because (1) some of the measures were only monitored; (2) there were inaccuracies in the GEIS; (3) some of the conclusions in the GEIS were outdated; and (4) none of the measures were mandatory. Additionally, the court concluded that the MFRC did not “truly perform a regulatory function” and that “[w]ithout some assurances that mitigation measures can be compelled, even good-faith intentions can have an evanescent quality * * *.” It further reasoned, “[t]he record here shows that some mitigation measures have been implemented, but it does not show that other, seemingly important, measures have gotten beyond the guidelines or strategizing stage.” Thus, the court of appeals reversed the district court and remanded to the MPCA for preparation of an EIS. We granted Boise Cascade‘s and the MPCA‘s petition for further review of the decision of the court of appeals.
Minnesota Environmental Law Background
Central to this case is the Minnesota Environmental Policy Act (MEPA), which requires that an EIS be prepared by the RGU whenever there is the potential for significant environmental effects resulting from any major governmental action.7
The Environmental Quality Board has promulgated rules setting forth the criteria that must be considered by the RGU when deciding whether a project has the potential for significant environmental effects and whether preparation of an EIS is
A. type, extent, and reversibility of environmental effects;
B. cumulative potential effects of related or anticipated future projects;
C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and
D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.
Id.
An EIS is meant to be prepared on a project-specific basis, but the EQB rules allow a generic environmental impact statement (GEIS) to be prepared to study the potential impacts of similar projects taken as a whole.
Here, in response to citizens’ petition concerning the impact of timber harvesting in Minnesota, the EQB began preparation of the Forestry GEIS in 1989 and completed it in 1994. The Forestry GEIS assessed environmental impacts related to increases in timber harvesting and recommended mitigation strategies to address those impacts identified as significantly adverse. In response to the Forestry GEIS, the Minnesota legislature created the Sustainable Forest Resources Act. Act of May 24, 1995, ch. 220, § 78-87, 1995 Minn. Laws 1645-53, now codified at
I.
“[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). Since Reserve Mining, the legislature has codified the standard of review for agency‘s decisions in contested case proceedings in the Minnesota Administrative Procedures Act (MAPA) at
One of the MAPA standards of review is whether the agency‘s decision is affected by error of law, and the MCEA argues that the decision not to prepare an EIS is contrary to law. The MCEA further argues that because the issue presented requires interpretation of the MEPA and the EQB rules implementing that statute, review by this court is de novo. See St. Otto‘s Home v. Minn. Dep‘t of Human Servs., 437 N.W.2d 35, 39 (Minn.1989). Here, the statute requires an EIS if Boise Cascade‘s project will result in “significant environmental effects.”
A decision is supported by substantial evidence when it is supported by (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety. Cable Commc‘ns Bd. v. Nor-West Cable Commc‘ns P‘ship, 356 N.W.2d 658, 668 (Minn.1984).
II.
The MCEA makes several related arguments regarding the MPCA‘s decision not to require an EIS for the Boise Cascade project. For purposes of our analysis, these arguments will be organized into two categories. First, the MCEA argues that we should affirm the court of appeals because the MPCA‘s use of the Forestry GEIS was improper. Second, the MCEA argues that we should affirm because the voluntary timber management guidelines relied upon by the MPCA cannot be legally adequate mitigation.
A. Use of the GEIS
The MCEA makes two arguments regarding the MPCA‘s use of the Forestry GEIS and the ramifications of its use. Specifically, the MCEA argues that, under the EQB rules, the MPCA failed to conduct additional analysis necessary to justify reliance on the Forestry GEIS. The MCEA also argues that because Boise Cascade‘s project falls into one of the scenarios studied in the Forestry GEIS and because that scenario resulted in significant environmental effects unless certain mitigation measures were in place, an EIS would be required by law.
The DNR represented that the Forestry GEIS is the most comprehensive, scientific assessment of forest health procedures to date. Furthermore, in the DNR‘s comments and responses on timber harvest issues for the EAW, it indicated that Boise Cascade‘s project was of the type anticipated by the Forestry GEIS to come forward in the coming decades. The MPCA properly relied on the DNR‘s expertise and confidence in the Forestry GEIS in determining that no EIS was required. Therefore, under longstanding precedent and general principles of administrative law and based on this record, we will defer to the technical expertise of the MPCA and the DNR regarding the use and application of the Forestry GEIS. Reserve Mining, 256 N.W.2d at 824. Accordingly, we hold that the MPCA and the DNR‘s use of the Forestry GEIS was not arbitrary or capricious.
B. Mitigation
In making its decision whether to require an EIS, the MPCA was required by
The MPCA addressed the mitigation criterion several times in its findings of fact and conclusions and specifically found that the “cumulative statewide effects of timber harvesting are subject to ongoing regulatory authority through the programmatic mitigation established by the Sustainable Forest Resources Act” and the guidelines developed by the MFRC. The MPCA then concluded that “the potential environmental effects of the project are subject to mitigation by ongoing public regulatory
In contrast, the MPCA argues that the court of appeals substituted its judgment for that of the MPCA and the DNR and that substantial evidence supports the MPCA‘s conclusions. We agree. While the court of appeals acknowledged that some mitigation measures have been identified and implemented, it found their “efficacy * * * questionable” unless there was some assurance that the mitigation measures could be compelled. The court also concluded that monitoring of the mitigation measures was substantially lacking. In so doing, the court of appeals weighed the evidence as a trier of fact instead of analyzing the issue properly under the supported by substantial evidence standard of review.
For the MPCA‘s decision to satisfy the MAPA‘s supported-by-substantial-evidence standard, its decision must be supported by either (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety. Cable Communications Bd., 356 N.W.2d at 668. Contrary to the arguments of the MCEA and the conclusion of the court of appeals, our review of the record indicates that there is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that the MPCA did consider, in sufficient detail, adequate mitigation to ensure that the environmental consequences have been fairly evaluated. For example, the 36-page Appendix E of the EAW detailed an array of specific mitigation measures being undertaken. In addition, the record indicates that the DNR and the United States Forest Service (USFS), who own approximately one-third of all forested land in Minnesota, are actively implementing mitigation measures. The DNR has committed to meet or exceed the recommended site level guidelines in carrying out its forest management activities. Similarly, the USFS has developed certain policies for its lands to be maintained in a condition consistent with the GEIS assumptions. The EAW record also indicates that both Boise Cascade and the DNR are committed to applying the MFRC guidelines, at a minimum, to timber harvesting on land they own. The record also indicates application of similar measures on certain county and federal lands.
Further, the record reveals another important detail overlooked by the MCEA. Specifically, we note one of the final conclusions made by the MPCA in its findings of fact and conclusions: “Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigative measures have been incorporated into the project design and proposed permits. The project is expected to comply with all MPCA standards.” (Emphasis added). The MPCA did not rely solely on compliance with the voluntary timber management guidelines as mitigation. Instead, the MPCA considered Boise Cascade‘s detailed commitment to the timber management guidelines on its land (Appendix F of the EAW included 24 measures undertaken by Boise Cascade to mitigate the environmental impacts of timber harvesting), the DNR‘s commitment to the guidelines on its land, as well as county and federal efforts on their land.
Here, Boise Cascade‘s project will require changes to two permits issued by the MPCA—an amendment to the Title V air operating permit as well as modification of a Prevention of Significant Deterioration permit.9 Inclusion of some of the mitigative measures into the conditions of the permits means that the guidelines are not entirely voluntary but, together with the voluntary and ongoing measures, do provide substantial evidence to support the MPCA‘s finding that the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority. Importantly, MPCA is the official RGU for the environmental review of this project under
Thus, contrary to the court of appeals’ conclusion, based on this record we conclude that there are assurances that reasonable mitigation measures will be in place when the permit is issued. Boise Cascade has agreed to utilize numerous mitigative measures on its own land and may ultimately be required by the permit conditions to ensure that its suppliers in Minnesota also utilize such mitigation measures. As such, the record supports the conclusion that the environmental effects of this proposed project are subject to both some voluntary and mandatory mitigation that will be in place before any increased harvesting is undertaken. See National Audubon Soc. v. Minn. Pollution Control Agency, 569 N.W.2d 211, 218 (Minn.App.1997) (affirming summary judgment for the MPCA when it determined an EIS was not required based on Forestry GEIS mitigation measures), rev. denied (Minn. Dec. 16, 1997).
The parties’ focus on the mandatory or voluntary nature of the mitigation measures is somewhat misleading when the
We note that preparing an EAW, making the decision whether the EAW requires an EIS, and the ultimate preparation of an EIS are essentially an information gathering and analytical process.
Our review of an agency‘s decision is a limited one. Here, we must determine whether the MPCA‘s decision is supported by substantial evidence. The MPCA‘s decision is supported by substantial evidence if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Cable Communications Bd., 356 N.W.2d at 668.
Reversed.
PAUL H. ANDERSON, Justice (concurring).
I concur in the result reached by the majority, but I write separately because of the weakness I perceive in the majority‘s mitigation analysis. Because of this weakness, the majority needs to extend itself to affirm the action of the MPCA—even given our narrow standard of review. Nevertheless, I agree that the court of appeals’ decision was in error and thus reluctantly concur in the majority‘s holding. I do so because of the deferential standard of review we must apply to the decisions of administrative agencies.
The majority concludes that it does not have to address whether voluntary mitigation measures are appropriate for consideration under
However, the majority relies heavily on the assumption that the MPCA intended to incorporate mitigation measures (i.e., some or all of the MFRC guidelines) as necessary conditions of its air operation permits. The majority reaches this conclusion based on language found in the MPCA‘s Findings of Fact and Conclusions, the document in which the MPCA made its final decision not to require an EIS. The majority specifically refers to the MPCA‘s conclusion that “mitigative measures have been incorporated into the project design and proposed permits.”
While the majority‘s interpretation of the language in the MPCA‘s conclusion may be reasonable when taken by itself, a thorough review of the record raises serious questions about this conclusion. More particularly, the record reflects that neither the MPCA nor the DNR analyzed the potential environmental effects of Boise Cascade‘s project under the assumption that mitigation measures for timber harvesting, such as the MFRC timber harvesting guidelines, would be included in any MPCA permits. Instead, the language that the majority relies upon is more likely in reference to the mitigation measures that are to be incorporated into the permits regarding air and water pollution. The MPCA‘s findings contain a separate section with respect to each criteria, including mitigation; the single reference to timber harvesting mitigation in the mitigation section refers only to the ongoing implementation of the SFRA. Indeed, based on an analysis of the record, the MPCA appears to have specifically rejected incorporating timber harvesting mitigation measures into its permits.
A close reading of the proceedings before the MPCA confirms my conclusion. The record contains a letter sent to the MPCA on behalf of the Sierra Club, requesting that several mitigation measures,
Later in the meeting, a Board member raised a similar question about enforcing Boise Cascade‘s commitment to the MFRC guidelines through permit conditions. In response, a member of the MPCA‘s environmental review staff responded that this was “not a new suggestion.” The staff member went on to explain that inclusion of such guidelines in permits has never been done and that the agency does not advocate such an approach. The staff member stated:
I‘m not aware of the agency taking that kind of action. We have had that suggestion with respect to the use of recycled fiber, to mandate recycled fiber usage. We have had—again, we have had commitments stated by companies, sometimes in writing, other times just verbally, but nevertheless commitments about implementing guidelines on lands that they made or with their loggers, sometimes writing it in the contracts that they do things, but its [sic] never been permitted.
I guess our attitude is that statements made in the record, the public record, are things that the PCA should be able to rely on when making permitting decisions, and we have not advocated carrying those over into permits.
Essentially, the MPCA rejected a suggestion very similar to the majority‘s interpretation of the language in the Findings. Aside from this discussion, the record does contain discussion of permits and permit conditions, but only with respect to mitigation of air and water pollution—not with respect to the effects of timber harvesting.
I acknowledge that in reaching its holding the majority does not exclusively rely on the permit conditions, which is the reason that I concur rather than dissent. To support its holding, the majority also relies upon the mitigation measures implemented and enforced by the United States Forest Service (USFS), the DNR, and certain Minnesota counties. However, the MPCA did not address these measures as part of its specific findings on mitigation and presumably did not base its final decision on them. Although these mitigation measures are certainly not as comprehensive as those recommended in the Forestry GEIS, the mitigation measures noted by the majority do constitute more than a scintilla of evidence in the record that the MPCA did, in fact, consider the extent to which the effects of the project were subject to mitigation by ongoing public regulatory authority. When deciding matters of
CINCINNATI INSURANCE COMPANY, Appellant,
v.
Francine FRANCK, et al., Respondents,
John Penniston, et al., Respondents.
No. C4-01-1666.
Court of Appeals of Minnesota.
May 14, 2002.